formance of an award, or the doing of any act, &c., this is collateral to the obligation, and a tender and refusal is a perpetual bar. Co. Litt. 207; 9 Co. 79, H. Peytoe's case. So if a man be bound in 200 quarters of wheat for delivery of 100 quarters of wheat, if the obligor tender at the day the 100 quarters, he shall not plead uncore priste, because albeit it be parcel of the condition, yet they be bona peritura, and it is a charge for the obligor to keep them. Co. Litt. 207. From a remark of Coke upon this example of an obligation for the delivery of wheat, it is very clear, that he was of opinion that the obligee had no remedy to recover the wheat tendered. For he says, and the reason wherefore in the case of an obligation for the payment of money, the sum mentioned in the condition is not lost by the tender and refusal, is not only for that it is a duty and parcel of the obligation, and therefore is not lost by the tender and refusal, but also for that the obligee hath remedy by law for the same.' This remark has no point whatever, unless the wheat is to be considered as lost by the tender and refusal. In the case of an obligation or contract for the delivery of specific articles, &c., the duty is not discharged by a tender or refusal, because any title to the thing tendered vests in him who refuses it, for in that case the condition or contract must be considered as performed, and should be so pleaded, but because the defendant having done all in his power to perform the condition or contract, and having been prevented by the fault of the other party, the non-performance is by law excused. This is evident from many cases that are to be found in the books.' The learned judge then cites and comments on several cases, and continues, "It is believed, that it may with great safety be affirmed that there is nothing in the English books, nor in the decisions of our own courts, that gives the least countenance to the supposition, that when specific articles are tendered and re

fused, the property still passes. It seems, however, that a different opinion formerly prevailed in Connecticut. 1 Root, 55 and 443; 1 Swift's Syst. 404. But it seems to have been formed without due consideration, and stands wholly unsupported by authority. Nor are we able to learn, either from Swift or Root, the grounds of the decision. It also seems from some remarks made by individual judges in the case of Slingerland v. Morse, 8 Johns. 474; and in Coit et al. v. Houston, 3 Johns. Cas. 243, that an opinion is entertained in New York that property may pass upon a tender and refusal. But in neither of those cases was that the point before the court, and although we entertain the highest respect for the talents and legal learning of the judges who seem to have intimated such an opinion, we cannot rely upon their obiter dicta on points not before them, in opposition to the whole current of authorities from the earliest times. . . . Had the plaintiff been well advised, he would not have rejected the tender at the risk of his debt, but would have received the leather and indorsed the quantity upon the note. He might then have brought an action upon the note to recover the balance, and have settled the question without incurring any hazard but that of costs. But he saw fit to take a different course. This was probably done through an innocent mistake, and if so, it was his misfortune, but cannot alter the law. However innocent the mistake may have been, he has no right to ask an indemnity from the defendant, who seems to have been in all things equally innocent. And as he chose to exact of the defendant a rigid compliance with the terms of the contract, he must not complain if the defendant now chooses to shield himself under the rigid rules of the law." But this decision has not been approved of, and it probably would not now be considered as law in any jurisdic tion.

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(g) Thus, where A agreed to deliver to B by the first of May, from 700 to 1,000 barrels of meal, for which B agreed to pay on delivery at the rate of six dollars per barrel, and A delivered 700 barrels, and also before the day tendered to B 300 barrels more, to make up the 1,000 barrels, which B refused; it was held, that B was bound to receive and pay for the whole 1,000 barrels; the delivery of any quantity between 700 and 1,000 barrels, being at the option of A only, and for his benefit. Disborough v. Neilson, 3 Johns. Cas. 81.

(h) Thus, in an entire contract of sale or manufacture of a large quantity of an article or articles, at an agreed price for each, the current of authorities holds, that a delivery and acceptance of part gives a right to recover for that part, deducting whatever damages the other party sustained by the non-fulfilment of the contract. Bowker v. Hoyt, 18 Pick. 555, a sale of 1,000 bushels of corn at 85 cents per bushel. The plaintiff delivered only 410 bushels, and refused to deliver the remainder; the vendee kept what he had received, and was held bound to pay for it, deducting his damages. Oxendale v. Wetherell, 9 B. & C. 386, was a sale of 250 bushels of wheat at 85 cents per bushel. The vendor delivered only 130 bushels, when, corn having advanced, he refused to deliver the remainder. The jury found the contract to be entire, but as the vendee had retained the corn delivered, until after the expiration of the time for the completion of the contract, the whole Court of King's Bench held him liable for the same. Champion v. Short, 1 Camp. 53, is to the same effect. There the defendant, who resided at Salisbury, ordered from the plaintiff, a wholesale grocer in London, "half a chest of French plums, two hogsheads of raw sugar, and 100 lumps of white sugar, to

be all sent down without delay." The plums and raw sugar arrived nearly as soon as the course of conveyance would permit; but the white sugar not coming to hand the defendant countermanded it, and gave notice to the plaintiff, that as he had wished to have the two sorts of sugar together, or not at all, he would not accept of the raw. The plums the defendant used, and this action having been brought to recover the price of the plums and the raw sugar, he tendered the price of the plums; and at the trial the question was, whether he was liable to pay for the sugar. And per Lord Ellenborough: "Where several articles are ordered at the same times, it does not follow, although there be a separate price fixed for each, that they do not form one gross contract. I may wish to have articles A, B, C, and D, all of different sorts and of different values; but without having every one of them as I direct, the rest may be useless to me. I therefore bargain for them jointly. Here, had the defendant given notice that he would accept neither the plums nor the raw sugar, as without the white sugar they did not form a proper assortment of goods for his shop, he might not have been liable in the present action; but he has completely rebutted the presumption of a joint contract, including all the articles ordered, by accepting the plums, and tendering payment for them. Therefore, if the raw sugar was of the quality agreed on and was delivered in reasonable time, he is liable to the plaintiff for the price of it." And see Barker v. Sutton, 1 Camp. 55, n. ; Bragg v. Cole, 6 J. B. Moore, 114; Shaw v. Badger, 12 S. & R. 275, recognize the same rule. In Booth v. Tyson, 15 Vt. 515, the contract was to mould for the defendant two hundred stove patterns; only a part was ever made, which the defendant used and disposed of as they were made. The plaintiff gave up the

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contract without completing it; but he was allowed to recover on a quantum meruit, deducting the damages to the other party. In Mavor v. Pyne, 3 Bing. 235, also, it was held, that a contract to publish a work in numbers, at so much a number, meant that each number should be paid for as delivered. Shipton v. Cason, 5 B. & C. 378, holds also, that an accept ance of part under an entire contract, gives a right of action for such part, although, in accordance with the suggestions in that case, it may be questioned whether the plaintiff can sustain an action for part, until after the expiration of the time for the delivery of the whole; for perhaps the vendee may conclude to return what he has received unless the whole is delivered, which cannot be known until the time has expired. See Waddington v. Oliver, 5 B. & P. 61. The New York courts adopt a different doctrine, and hold, that part performance, although accepted, furnishes no ground of recovery pro tanto, and repudiate the doctrine of Oxendale v. Wetherell, supra; Champlin v. Rowley, 13 Wend. 285, 18 id. 187; Mead v. Degolyer, 16 Wend. 632; Paige v. Ott, 5 Denio, 406; McKnight v. Dunlop, 4 Barb. 36; and see ante, p. 523, n. (2).

(i) The most frequent cases where the entirety of a contract is sustained as a good defence in law to an action for part performance, are, perhaps, contracts of labor and service for a fixed time. Here the current of authorities agrees that part performance gives no right to part compensation, unless the fulfilment of the contract is prevented by the act of the obligee. Cutter v. Powell, 6 T. R. 320, is well known as the leading case on this subject. There a sailor had taken a note from the master of a vessel to pay him 30 guineas, "provided he proceeded, continued, and did his duty as second mate from Jamaica to Liverpool." The sailor died on the voyage, and his administrator was not allowed to recover anything for the service actually performed. But as the sailor was by the contract to receive about four times as much, provided he completed the

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voyage, as was generally paid for the same service without any special contract, this fact might have had much influence upon the court in determining this contract to be entire and not apportionable. But in this country, sickness or death of the laborer has been frequently held a sufficient excuse for non-performance of the whole contract, and the laborer, or his administrator, may recover for the service actually rendered. Fenton v. Clark, 11 Vt. 557; Dickey v. Linscott, 20 Me. 453; Fuller v. Brown, 11 Met. 440. The same rule has been applied where the non-performance was caused by the act of law. Jones v. Judd, 4 Comst. 412. See ante, p. 38, n. (j). Although in the same courts the general rule is fully recognized and constantly acted upon, that part performance of such a contract gives no right to part payment, if the non-performance is voluntary on the part of the plaintiff, and not caused by the defendant or by an act of God. See St. Albans St. Co. v. Wilkins, 8 Vt. 54; Hair v. Bell, 6 Vt. 35; Philbrook v. Belknap, 6 Vt. 383; Brown v. Kimball, 12 Vt. 617; Ripley v. Chipman, 13 Vt. 268; Stark v. Parker, 2 Pick. 267; Olmstead v. Beale, 19 Pick. 528. And see ante, p. 36, n. (g) and ante, p. * 523, n. (i). So if rent is to be paid quarterly, and during a quarter the lessee delivers up and the lessor accepts possession of the premises, without anything said about rent pro rata, none is payable. Grimman v. Legge, 8 B. & C. 324; and see Badeley v. Vigurs, 4 Ellis & B. 71, 26 Eng. L. & Eq. 144.

(j) Thus, in Gilman v. Hall, 11 Vt. 510, A contracted to build $60 worth of stone-wall for B, of a given length, height, and thickness. He built a wall worth $60, but in some parts it was not of the given height, the deficiency being made up in extra length. He was allowed to recover on a quantum meruit, on the ground that there had been a substantial compliance. See also Chambers v. Jaynes, 4 Barr, 39, that a substantial bona fide compliance is all that is necessary. And see ante, p. 523, n. (i).

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